President Trump’s views on immigration have made themselves clear in his first year in office. The ‘build a wall’ slogans, travel bans, separation of families and deployment of 5,000 American troops to the U.S. Mexican border have set the precedent for Trump’s new proposal to expunge birthright citizenship established in the 14th Amendment of the United States Constitution through an executive order.
The United States and its presidents have long taken advantage of the power of the pen in signing executive orders. Most notable is Franklin D. Roosevelt, signing over 3,700 executive orders in his 12 years in office, but other recent presidents have averaged out to between 100 to 400 signings. So far in his first term, President Trump has signed 77 executive orders. However, his most recent attempt to utilize presidential power to revoke birthright citizenship and overrule the 14th Amendment has kindled national controversy.
The 14th Amendment opens with “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” Ratified in 1868, the amendment was created to refute and overrule the Dred Scott Supreme Court case of 1857 that ruled slaves as property instead of citizens. However, the extent of this law expanded 30 years later in another Supreme Court case, United States v. Wong Kim Ark, when it was held that a child of two Chinese immigrants was legally granted U.S. citizenship for being born on American soil. This idea, otherwise known as jus soli, has since been used by a child of any immigrant in the United States, documented or otherwise.
In a recent interview with Axios, President Trump stated: “We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States for 85 years, with all of those benefits. It’s ridiculous. It’s ridiculous. And it has to end.”
Even if we ignore, for a moment, the blatant and obvious lie that the United States is the only country in the world that recognizes birthright citizenship (in fact, there are around 30 others, including Canada and Mexico), Trump’s statements on this issue are still uneducated and incorrect in his beliefs that he can overrule the 14th Amendment through an executive order.
“It was always told to me that you needed a constitutional amendment, guess what, you don’t,” Trump said. “Number one, you don’t need that. Number two, you can definitely do that with an act of Congress, but now they are saying I can do it with just an executive order.”
This belief, however, does not hold up to how the U.S. government enacts laws.
If a law is backed by the Constitution, then it can only be changed through a constitutional amendment. If a law is backed by a statute, then it can only be changed through another statute. This is the same for executive orders: in order for an executive order to influence laws, they have to either directly roll back or change a previous president’s executive order, or it simply serves as instructions for governmental agencies and departments for how they should operate around already established areas or laws.
A New York Times article says, “Amendments to the Constitution cannot be overridden by presidential action — they can be changed or undone only by overwhelming majorities in Congress or the states, with a two-thirds vote of both houses of Congress or through a constitutional convention called for by two-thirds of state legislatures.”
Either Trump does not understand these facts and truly believes he wields enough power to change the Constitution singlehandedly — which would entirely undermine the basis of the democratic checks and balances system in place between the three branches of America’s government — or he is trying to call attention to the immigration issue to rally support for Republican candidates just days before the midterm elections.
Trump cannot change the 14th Amendment through the power of his pen, but can attempt to do so and have the issue brought to the Supreme Court, with two of its newest members appointed by Trump, where they would hold the final decision on whether the language of the amendment includes the children of immigrants. In the meantime, Trump will continue to boast his plan, in an ever condescending way, like as seen towards the end of his interview with Axios.
“It’s in the process, it will happen. With an executive order, that’s what you are talking about right? I didn’t think anyone knew that but me. I thought I was the only one,” Trump said.
This authoritative and dictatorial stance on an issue as serious as immigration is Trump’s way of rallying support before midterms and as Dara Lind of Vox says, “ending birthright citizenship has always been the restrictionist immigration proposal that’s hardest to disentangle from simple xenophobia: the fear of immigrants changing the character of America and overrunning its (white) population.”
America benefits from immigrants. They’re cemented into our history and instrumental for our workforce. Beyond the historical importance, a study conducted by the Migration Policy Institute found that if citizenship was denied to those who were born in the U.S., the unauthorized population would double what it is now and reach 24 million by 2050.
Even if Trump could change the 14th Amendment and revoke birthright citizenship with an executive order, he should not. A person born in the United States knows nothing but the United States. Burdening them with the constant fear of deportation to a place they have never known is cruel and against the liberal ideologies and human rights beliefs that America needs to protect. Because after all, immigrants help make our country great.